This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (2004).

 

 

STATE OF MINNESOTA

IN COURT OF APPEALS

A05-781

 

State of Minnesota, petitioner,

Respondent,

 

 and

 

Julie Ann Hill, petitioner,

Respondent,

 

vs.

 

Brian A. Hill,

Appellant.

 

Filed May 4, 2006

Affirmed in part, reversed in part, and remanded

Willis, Judge

 

Hennepin County District Court

File No. SP 216741

 

 

Amy Klobuchar, Hennepin County Attorney, Theresa Farrell-Strauss, Assistant County Attorney, 110 South Fourth Street, Minneapolis, MN  55401-2280 (for respondent state)

 

Julie Ann Hill, 8150 Utah Avenue South, Bloomington, MN  55438-1080 (pro se respondent)

 

Brian A. Hill, 5218 Madison #6351, Wesley, AR  72773 (pro se appellant)

 

            Considered and decided by Kalitowski, Presiding Judge; Willis, Judge; and Stoneburner, Judge.

 

U N P U B L I S H E D   O P I N I O N

WILLIS, Judge

            Appellant-father challenges the district court’s modification of his child-support obligation, which was originally determined by a Mississippi court.  Because the district court has the authority to modify the Mississippi order using Minnesota law, we affirm in part.  But because the district court, without making any of the required statutory findings, retroactively modified father’s obligation for a period before he served his motion, we reverse in part and remand.

FACTS

            The marriage of respondent-mother Julie Ann Hill and appellant-father Brian A. Hill was dissolved in 1990 by a Mississippi court.  By an order entered in the Mississippi court, it was determined that mother would have primary physical custody of the parties’ three children and that father would pay monthly child support.  The order stated that Mississippi law “shall continue to control the child support of this Agreement.”  In 1992, mother and the children moved to Minnesota, and in 1995, mother applied in Minnesota for child-support enforcement services, which she began receiving through a Mississippi enforcement authority.  In 1999, Iowa began enforcing support when father moved there.  In 2002, father moved to Minnesota, and Hennepin County pursued income withholding to satisfy father’s child-support arrears.  The parties’ older daughter and only son were emancipated in 2000 and 2002, respectively.  The parties’ younger daughter is now 17 years old, and she and mother currently reside in Minnesota.  Father resided in Minnesota until 2004, when he moved to Arkansas.

In February 2003, father served a motion to “determine his child support obligation” and to quash the income withholding.  At a hearing on the motion, father and the county both acknowledged that the Mississippi order had not been registered for enforcement and modification in Minnesota.  Father initially objected to the registration of the order but withdrew his objection when the child-support magistrate advised him that the court “lacked jurisdiction to grant any relief” without registration.  Father also argued that his arrears should be credited for the time that the parties’ older daughter lived with him from June 1998 to July 2000.  In a May 2003 order, the child-support magistrate found that the order had not been registered in Minnesota and directed that the Mississippi order is “hereby registered for enforcement and modification.”  The child-support magistrate concluded that father was not entitled to retroactive modification of child support because he did not meet the statutory requirements for such modification under Minn. Stat. § 518.64, subd. 2(d).  In October 2003, a second child-support magistrate increased father’s support obligation, applying Minnesota law, and continued income withholding to satisfy arrears in excess of $37,000.

Father moved for review of the May 2003 and October 2003 orders, and the district court remanded to the first child-support magistrate for reconsideration.  Because that magistrate was unavailable, in October 2004, the second magistrate vacated her October 2003 order, further increased father’s support obligation under Minnesota’s guidelines, and reduced father’s arrears by $2,251 as a credit for a part of the time that the parties’ older daughter lived with him.  Father then moved the district court for review of the October 2004 order.  The district court corrected minor clerical errors and adjusted father’s child-support obligation, concluding that the second magistrate incorrectly included reimbursed moving expenses as income to father.  The district court affirmed all other provisions of the October 2004 order.  Father filed this pro se appeal, challenging the increase of his child-support obligation.

D E C I S I O N

The interpretation of a statute is a question of law, which this court reviews de novo without being bound to the district court’s decision.  Nash v. Wollan, 656 N.W.2d 585, 589 (Minn. App. 2003), review denied (Minn. Apr. 29, 2003).  The application of a statute to undisputed facts also presents a question of law.  Dachtera v. Whitehouse, 609 N.W.2d 248, 249 (Minn. App. 2000).

The enforcement and modification of foreign child-support orders is controlled by the Uniform Interstate Family Support Act (UIFSA).[1]  Minn. Stat. §§ 518C.101 to .902 (2004).  The UIFSA recognizes “that only one valid support order may be effective at any one time.”  Unif. Interstate Family Support Act, Prefatory Note II.B.3 (amended 1996), 9 U.L.A. 287 (2005).  The UIFSA’s one-order system is based on the principle of “continuing, exclusive jurisdiction,” which “ensure[s] that a state that obtains jurisdiction keeps it during the life of the order unless a valid reason exists to transfer jurisdiction to another forum.”  U.S. Commission on Interstate Child Support’s Report to Congress, Supporting Our Children: A Blueprint for Reform 36 (1992). 

As long as one of the individual parties or the child continues to reside in the issuing state, and as long as the parties do not agree to the contrary, the issuing tribunal has continuing, exclusive jurisdiction over its order – which in practical terms means that it may modify its order.

 

Unif. Interstate Family Support Act, § 205 cmt. (amended 1996), 9 U.L.A. 340 (2005).  But when the parties and the child move to a different state, the issuing state no longer has an appropriate connection to the parties or the child to justify its authority to modify the order, unless the parties consent to the continuing jurisdiction of the issuing state.  Id. at 340-41.  “The original order remains in effect until it is properly modified.”  Id. at 340.

“When courts lose continuing, exclusive jurisdiction . . . , they lose jurisdiction to modify the [child-support] order, but the order may still be enforced by the issuing court and by courts of any states where the order has been registered.”  Porro v. Porro, 675 N.W.2d 82, 86 (Minn. App. 2004).  Although the UIFSA identifies how the issuing state may lose jurisdiction to modify the order, that loss does not automatically grant authority to another state to modify the order.  Id.  Instead, sections 611 and 613 of the UIFSA (codified in Minnesota at Minn. Stat. §§ 518C.611 and 518C.613) identify the circumstances under which another state can exercise such authority.  Id. at 86-87.

Father does not challenge Minnesota’s authority to modify his child-support obligation but argues that the district court wrongly determined that Minnesota had continuing, exclusive jurisdiction.  The record shows that father’s attorney consented to the Minnesota court’s exercise of continuing, exclusive jurisdiction, but father now argues that his consent was unknowing.  It appears that father confuses the concept of continuing, exclusive jurisdiction with the choice-of-law provisions of the UIFSA.  The existence of continuing, exclusive jurisdiction authorizes a Minnesota court to exercise its authority to enforce and modify the Mississippi order.  When Minnesota courts acquire such jurisdiction because all of the parties reside in Minnesota, consent by the parties is not required.  See Minn. Stat. § 518C.613(a) (2004).  Other provisions of the UIFSA, however, control whether Minnesota or Mississippi law applies to modification of the order here.  See Minn. Stat. § 518C.613(b) (2004).

In any event, the district court correctly determined that it had continuing, exclusive jurisdiction.  Mississippi courts retained continuing, exclusive jurisdiction as long as father, mother, or their children resided in Mississippi, or the parties consented to Mississippi’s exercise of such jurisdiction.  Miss. Code. Ann. § 93-25-17(1) (2004).  Here, neither the individual parties nor their children resided in Mississippi when father requested modification.  And while the parties, at the time of their dissolution, agreed that Mississippi law would control the amount of father’s child-support obligation, mother and father did not consent to Mississippi’s exercise of continuing, exclusive jurisdiction.  Therefore, Mississippi no longer has jurisdiction over its order.

But Mississippi’s loss of continuing, exclusive jurisdiction is not sufficient alone to give such jurisdiction to Minnesota courts.  The requirements of Minn. Stat. §§ 518C.611 or 518C.613 must be satisfied before Minnesota courts can modify the order.  “If all of the parties who are individuals reside in this state and the child does not reside in the issuing state, a tribunal of this state has jurisdiction to enforce and to modify the issuing state’s child support order in a proceeding to register that order.”  Minn. Stat. § 518C.613(a).  When father requested modification, he, mother, and the children all resided in Minnesota.  Therefore, Minnesota courts had jurisdiction to enforce and modify the Mississippi order establishing father’s child-support obligation.

When Minnesota issues a support order consistent with the UIFSA, it retains continuing, exclusive jurisdiction over that order “as long as [Minnesota] remains the residence of the obligor, the individual obligee, or the child for whose benefit the support order is issued.”  Minn. Stat. § 518C.205(a)(1) (2004).  Mother (the individual obligee here) and the youngest child currently reside in Minnesota, and Minnesota therefore continues to have continuing, exclusive jurisdiction over the support order it entered.

We turn next to father’s argument that the district court erred by applying Minnesota law to modify his support obligation rather than Mississippi law, as stipulated to by the parties at the time of their marriage dissolution.  When Minnesota obtains authority to modify a foreign child-support order under section 518C.613, its courts “shall apply the procedural and substantive law of this state.”  Minn. Stat. § 518C.613(b).  This is so because the “modification of the child-support order when all parties reside in the forum is essentially an intrastate matter.”  Unif. Interstate Family Support Act, § 613 cmt. (amended 2001), 9 U.L.A. 261 (2005).  Therefore, despite the parties’ stipulation at the time of dissolution that “[Mississippi] law shall continue to control the child support,” Minnesota law is applied to modification of father’s child-support obligation, and the district court did not err by calculating father’s obligation under the Minnesota guidelines.

Father’s final argument is that the district court erred by not giving him “full, retroactive” child-support credit for the time that the parties’ older daughter lived with him from June 1998 until July 2000.  The district court concluded that father was “entitled to a one-third reduction of his support obligation for the period of February 2000 through July 2000.”

“Forgiveness of unpaid, child-support arrears that have accrued before the party has brought a motion to modify child support is a retroactive modification governed by Minn. Stat. § 518.64, subd. 2(d).”  Long v. Creighton, 670 N.W.2d 621, 627 (Minn. App. 2003).  Under section 518.64, the district court has discretion to set the effective date of a support modification.  Finch v. Marusich, 457 N.W.2d 767, 770 (Minn. App. 1990).   But modification of child support “may be made retroactive only with respect to any period during which the petitioning party has pending a motion for modification but only from the date of service of notice of the motion on the responding party and on the public authority if public assistance is being furnished.”  Minn. Stat. § 518.64, subd. 2(d) (2004).  Modification can be made retroactive to a date earlier than service of a motion for modification only if the district court makes an express finding that (1) the petitioner could not serve a motion because of disability, misrepresentation, or fraud; (2) the petitioner was a recipient of specific benefits or public assistance; (3) the child-support order was entered by default, the petitioner shows good cause for not appearing, and the record contains clearly erroneous evidence or no factual evidence of the petitioner’s ability to pay; or (4) the petitioner was institutionalized or incarcerated.  Id. 

Father served his motion requesting modification on February 19, 2003.  Because the district court modified father’s obligation for a period earlier than the date of the service of father’s motion, it could do so only if it made a finding required by section 518.64, subdivision 2(d).  But no such finding was made.  Therefore, the district court abused its discretion, and we reverse its order retroactively modifying father’s child-support obligation.  On remand, the district court must determine whether any of the requirements of Minn. Stat. § 518.64, subd. 2(d), apply to father before considering any modification of father’s child-support obligation to reflect the time that the older daughter lived with him.  The district court may also determine whether father satisfied all or part of his support obligation by providing “a home, care, and support” for the parties’ older daughter under Minn. Stat. § 518.57, subd. 3 (2004), and, if so, adjust the determination of his obligation for past support accordingly.  On remand, the district court may, in its discretion, reopen the record.

Lastly, we note our concern with the first child-support magistrate’s declaration that the Mississippi order is “hereby registered.”  To modify another state’s child-support order, the order of the foreign court must first be registered in Minnesota.  See Minn. Stat. § 518C.609 (2004) (providing that a “party . . . seeking to modify, or to modify and enforce, a child support order issued in another state shall register that order in this state”); cf. Rivera v. Ramsey County, 615 N.W.2d 854, 858 (Minn. App. 2000) (stating that, under the federal Full Faith and Credit for Child Support Orders Act, 28 U.S.C. § 1738B, “a court in another state may modify the obligor’s child-support obligation only if the party seeking modification has registered the order in the second state”). 

The first child-support magistrate found that the Mississippi order had not been registered in Minnesota, and there is no evidence in the record that the order has ever been registered in Minnesota.  The child-support magistrate directed that the Mississippi order is “hereby registered for enforcement and modification.”  But we find no authority for the proposition that a foreign child-support order can be registered simply by ordering that it is “hereby registered,” as the first child-support magistrate purported to do.  There is a statutory procedure for registering another state’s support order in Minnesota for enforcement or modification; that procedure requires obtaining specified documents from the issuing state and filing them in the registering state.  See Minn. Stat. § 518C.602 (2004).  Given the mandatory language of the UIFSA and the federal Full Faith and Credit for Child Support Orders Act that Minnesota “shall register” another state’s order before modifying it, the district court should have required the registration of the Mississippi order under Minn. Stat. § 518C.602 before modifying it.  See 28 U.S.C. § 1738B(i) (2000); Minn. Stat. § 518C.609.  We conclude, however, that father waived any objection to this procedural defect by not raising it.

            Affirmed in part, reversed in part, and remanded.